Wednesday, October 14, 2020

What an Original thought about Constitutional "Originalists"

 I have never understood American "originalist" legal theorists like Amy Coney Barrett and other "strict reading" constitutionalists who believe the American Constitution is forever perfect and can never be re-interpreted by the courts to meet modern challenges. 

Canada has them too, generally on the right who decry "judge-made law" and courts interpreting Charter protections to address emerging social realities.
For the "originalists" like Amy Coney Barrett who believe that the American Constitution is perfect and forever frozen in amber (never mind that slavery thing, or women voting), the best critique is actually from an "original" - Thomas Jefferson, founding father and primary author of the Declaration of Independence, who wrote in 1816 the following:
"Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors..."
"By the European tables of mortality, of the adults living at any one moment of time, a majority will be dead in about nineteen years. At the end of that period, then, a new majority is come into place; or, in other words, a new generation. Each generation is as independent as the one preceding, as that was of all which had gone before. It has then, like them, a right to choose for itself the form of government it believes most promotive of its own happiness; consequently, to accommodate to the circumstances in which it finds itself, that received from its predecessors; and it is for the peace and good of mankind, that a solemn opportunity of doing this every nineteen or twenty years, should be provided by the constitution; so that it may be handed on, with periodical repairs, from generation to generation, to the end of time, if anything human can so long endure."

By the way, some of the above was considered so important that it appears on the wall of the Jefferson Memorial.

In Canada, our Constitution (and Charter of Rights, which is part of the Canadian Constitution) has been interpreted more expansively since the 1929 "Persons Case", where Lord Sankey ruled: "The British North America Act planted in Canada [is] a living tree capable of growth and expansion within its natural limits." 
The "living tree" doctrine has ruled our constitutional interpretation since. Conservatives have preferred the "frozen concepts" (originalism) doctrine, but in the 2004 "same sex marriage" case, the Supreme Court of Canada stated:
"The "frozen concepts" reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life."

Wednesday, September 2, 2020

China's swagger wins few friends.

A new article from me about how China's heavy-handed tactics win them few friends and influence people - the wrong way. 

I frequently travelled back and forth to the PRC on business from 2000 to 2012. It was a time of great transition for China. Those were the formative years when it emerged as a world economic powerhouse, but now it is finding its uniquely Chinese version of Manifest Destiny doesn't breed trust or love in the West.


As the 21st Century began, the investing West discovered China. It was often referred to as the ‘Marco Polo Syndrome’ as North American investors and mineral explorers rode into China to seek their fortunes and show the Chinese ‘ how it’s done.’

For a brief while China also felt it needed the West’s cash and expertise to catapult it to prosperity. It welcomed and even was deferential to the army of foreign investors and joint ventures in mining, technology, telecom, manufacturing, and a host of infrastructure projects.

There were bumps along the way. Like the dot com boom and bust, projects that should never have been funded had money thrown at them in the rush to grab a piece of the China gold rush. With no experience of western business relationships, there were misunderstandings and some outright cash grabs by Chinese partners, with little recourse to western safeguards like courts or regulators. It was easy to blame the Chinese for early business failures, but many of the failures were made in North America because corners were cut by the people in New York, Toronto and London who feared missing the boat in the rush to establish a foothold in the massive Chinese market.

There were a number of great successes too, from mining to Volkswagen to Apple, as well as hundreds of other projects big and small. UBS recently estimated that Walmart imports 26% of its merchandise from China, while Target imports 34% of its products from China ( ). As China became more prosperous internally, it became even more of an attractive a market.

But then a seismic shift – both financial and psychological – occurred in 2008 that changed the West’s relationship with China. The market meltdown started by the collapse of mortgage-backed securities crippled the hedge funds and other financial institutions of London and New York. For the first time, China saw the West’s weakness and its own strength. It had found its swagger. The ancient Chinese belief in ‘tianxia’ - that China was the rightful center of the civilized world – was back.

In the late 20th century the Chinese Communist Party realized limited capitalism was the key to prosperity, and opened up to foreign and domestic trade and investment. Almost overnight they became “capitalists in a hurry” going through rapid expansion most like the rough-and-tumble late 19th century robber baron capitalism of the US.

China, like Russia, takes advantage of chaos and distraction in other countries. China took advantage of the 2008 economic crisis to expand its influence into Africa and elsewhere to secure needed raw materials. It is currently taking advantage of Covid-19 and the domestic turmoil in the United States and England to forcefully push back on the promised “two systems, one country” policy of Hong Kong semi-independence, the border with India and hegemony in the South China Seas. In Canada, the detention of Hauwei’s CFO Meng Wanzhou for extradition at the US’s request resulted in the retaliatory arrest and arbitrary detention of two Canadian citizens.

This is a good example of how China’s regaining its swagger has recently backfired internationally. In a global economy, bullyboy tactics in trade rarely produce good or lasting results. China’s general belligerence on the international stage has, among other things, disqualified Hauwei’s otherwise good 5G technology in the West, with countries opting instead for alternatives from Sweden’s Ericsson or Finland’s Nokia. Not being able to break through the suspicion, Hauwei only derives about 6% of its revenues from the West.

Outward bound Chinese investment is received with the same wariness, with concerns about security. And while Western projects and investments inside China have been generally more secure than the investing public gives it credit, it can’t help feel the chill caused by China’s bull in a china shop reputation in the West.

Can China break this cycle of jockeying for the upper hand with more stick than carrot? It’s unconditional demand for respect and obedience – a product of not just years communism, but deep-seated in its ancient self-image as the literal center of the world – makes it unwilling or unable to do what is necessary to be welcomed into western markets.

Until then, China’s swagger makes it its own worst enemy.


This article originally appeared on

Tuesday, May 5, 2020

Guns, Guns, Guns

I think the Supreme Court of Canada said it best.

In 2005 (R. v. Wiles, [2005] 3 S.C.R. 895 at 901) the Supreme Court of Canada said: " The state interest in reducing the misuse of weapons is valid and important. The sentencing judge gave insufficient weight to the fact that possession and use of firearms is not a right or freedom guaranteed under the Charter, but a privilege."

The SCC said the same thing in R. v. Hasselwander [1993] 2 S.C.R. 398: "Canadians, unlike Americans do not have a constitutional right to bear arms.  Indeed, most Canadians prefer the peace of mind and sense of security derived from the knowledge that the possession of automatic weapons is prohibited."

Pretty much the end of it.

In 2010 the Ontario Court of Appeal in R. v. Montague, 2010 ONCA 141 said:

[16] Moreover, contrary to the Montagues’ contention, the Supreme Court of Canada has addressed the question of whether the possession and use of firearms is a constitutionally protected right and has rejected the notion that Canadians have an absolute constitutional right to possess and use firearms. See R. v. Wiles, [2005] 3 S.C.R. 895, at para. 9; R. v. Hasselwander, [1993] 2 S.C.R. 398, at para. 414. Although s. 7 of the Charter does not appear to have been expressly invoked in those cases, the Supreme Court stated in Hasselwander at para. 414 that, “Canadians, unlike Americans, do not have a constitutional right to bear arms.” In Wiles at para. 9, the Supreme Court said: “[P]ossession and use of firearms is not a right or freedom guaranteed under the Charter, but a privilege.”

[17] The Montagues submit that the above-quoted comments are obiter, as ss. 7 and 26 of the Charter were not engaged in Hasselwander and Wiles or any related jurisprudence.

[18] We disagree. The Supreme Court’s comments in Hasselwander and Wiles apply with equal force to s. 7 of the Charter.

[19] The Supreme Court has also recognized that the possession and use of firearms is a heavily regulated activity aimed at ensuring peace, order and public safety: see Wiles, at para. 9; Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783
By the way, the decision of the Court in Montague was delivered by Moldaver J.A., who Harper later appointed to the Supreme Court.

Some people point to some ancient English common law right to arm yourself. Not any more. Not even in England. They point to section 26 of the Charter that the "
guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada," which they say includes the common law "right" to bear arms. That was specifically shot down in the 2010 case of R. v. Montague (above, para. 17). The common law of gun ownership was completely eclipsed by the enactment of the Firearms Act and regulations. When comprehensive legislation comes, it replaces the common law, which was again affirmed in R. v. Montague (above, para. 19). The common law only continues to exist in areas not covered by legislation. The field of gun regulation is pretty well covered.

Of course, property can't be taken without the authority of law. The current regulation suggests that owners of the 1500 variants and mods of the dozen or so newly-prohibited guns will not have to turn them in. It specifically refers to them being "grandfathered" to current owners (page 65 of the OiC). Government officials (and the published Order in Council regulation) have said this new regulation will not require owners of these now-banned guns to hand them over. They just won't be able to buy any more or sell them to anyone but the government. They will apparently no longer be able to take them to gun ranges either to target shoot as they have been moved into the prohibited class of weapons. They become museum pieces. 
Even if owners of these guns had to turn them in, that would not be without precedent either. There are many examples of things that were once legal and then became illegal. Lawn darts were legal in Canada until 1989. You could get toothpaste containing both radium and thorium in the 1920s. Even drunk driving in and of itself was not a criminal offence until 1921. Then it was. At one point, citizens could possess dynamite and explosives without a permit or license. To make this point I even did a tongue in cheek (but legally correct) Facebook post about when it was legal to own a bear in Canada -

But what about my "property rights?" some gun fanciers cry. There are lots of examples of regulating, banning and even expropriating property by the government. Think of large capacity magazines and silencers, or moving some short-barrelled pistols from the restricted to the prohibited lists. The reality is, governments regulate property rights all the time, the result of which is sometimes you can't own something anymore. Governments also have the right to seize personal property under the law. No province requires that individuals whose property is targeted by civil forfeiture proceedings be convicted of or even be charged with committing an illegal act. There are all kinds of examples of expropriation of personal property and land. In the case of Quebec (AG) v. Laroche [2002] the court ruled that there was no "constitutional guarantee of property rights, which was deliberately not included in the Charter."

I've had non-lawyers (but somehow constitutional experts nonetheless) also try to shoehorn gun ownership rights into Charter sections 7 (liberty) or 8 (unreasonable search or seizure). Nope. Section 15 (equality rights), because it's unfair that First Nations have an exemption for firearms (which they have historically have had for a long time). Nope again. Section 26 (common law continues)? Nope. See above about Canadian firearms laws and regulations covering the field.

And it's interesting that some of the people arguing for an expanded interpretation of the Charter are the same ones who complain about "judge-made law."

And they all forget about section 1 of the Charter of Rights and Freedoms: "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The key phrase here is "subject only to such reasonable limits prescribed by law...". No freedom is absolute. We live in a society here. I have a hard time imagining this firearm ban would be found to be unreasonable by a court.

Canadian law is shaped more by "peace, order and good government" than "stand your ground."

"But this won't solve the gun problem," is the other complaint.

Legal guns do end up in the hands of criminals. Every gun starts life as a legal gun. Then they get stolen, smuggled or lost, or an otherwise "legal" gun owner suddenly undergoes a crisis and crosses the line to illegal by his actions. Most gun owners are responsible and law-abiding, but that in and of itself does not create an entitlement.

I don't see this as a solution to crime, but rather a policy statement about where Canada is going. Unlike our southern cousins, we do not want to become a gun culture. They are all past the point of no return in terms of firearm saturation (120.5 guns per 100 Americans in 2017, and rising). As for crime, it is pretty much steady in Canada. Youth crime was down 10.5% in 2018 while violent crime was up 1.4%. There is a slight trend upward, but hardly a crime spree as the Conservatives like to fearmonger. And we are already pretty tough on crimes involving firearms, contrary to what the Sun chain likes to proclaim. I expect it will be down substantially when the new numbers come out because of the decriminalization of marijuana.

 I have had a PAL for over 30 years. I don't get emotional about guns. They are fun to shoot but they are just things, not a lifestyle or religion. They don't represent some long out of date mythology of freedom or Wild West idea of self defence. That isn't part of Canada's culture. Traditional subsistence hunters still have access to the guns they use as tools. No hunter uses any of the guns listed (except maybe the M14). These are hobby guns. Target, range and "collector" guns - just an expensive version of lawn darts. 

Restricting the future availability of some kinds of guns may not have any effect on our crime rate, but it says something about what we aspire to be as a society.

"And a phased plasma rifle in the 40-watt range..."